Jacob A. Polowin

The moving party, R.W. Tomlinson Limited, sought an order for costs against the Town of Greater Napanee and Keep Napanee Great following a successful appeal regarding a zoning by-law amendment and site plan application for an asphalt plant.

Tomlinson alleged that the respondents acted unreasonably by pursuing an appeal with no reasonable prospect of success and raising irrelevant evidence.

The Tribunal dismissed the motion, finding that the respondents' conduct did not meet the high threshold of being unreasonable, frivolous, vexatious, or in bad faith required for a costs award under Rule 23.9 of the Tribunal's Rules of Practice and Procedure.

At a Case Management Conference regarding appeals of the City of Ottawa's Official Plan Amendment No. 3, the Tribunal heard a motion to substitute Denise Ménard as a party in place of 3930149 Canada Inc., whose conditional agreement of purchase and sale with Ménard had been cancelled.

With no objections, the Tribunal granted the motion.

The Tribunal also granted participant status to 21 individuals representing the public's interest in the overall effect of the OPA.

A further Case Management Conference was scheduled for June 2024.

The appellant owner appealed the City of Ottawa's by-law designating their property under the Ontario Heritage Act.

The owner intended to demolish the existing c. 1912 house to build two new homes.

The Tribunal evaluated the property against three criteria under O. Reg. 9/06.

While finding insufficient evidence to establish design/physical value or historical/associative value, the Tribunal concluded the property has contextual value as it helps define, support, and maintain the character of the Highland Park area.

The appeal was allowed in part, but the designation was upheld based on contextual value.

The applicant sought consent under section 53 of the Planning Act to establish an easement for maintenance and access over its property in favour of an abutting property.

The easement was required as a condition of Site Plan Control Approval for the construction of an eight-storey hotel.

The Committee of Adjustment found that the application was consistent with the Provincial Policy Statement and satisfied the criteria under section 51(24) of the Planning Act.

The application for consent was granted subject to conditions.

The Tribunal held a first Case Management Conference regarding appeals by Phoenix Harbour Old Montreal Road Inc. against the City of Ottawa for failing to make decisions on zoning by-law amendment and draft plan of subdivision applications.

A request for party status by Tamarack (Cardinal Creek) Corporation was deferred on consent to allow for potential resolution of issues.

The Tribunal scheduled a six-day hearing for August 2024 and a second Case Management Conference for February 2024, and approved a Procedural Order to govern the proceedings.

The applicant appealed the Town's refusal of a Zoning By-law Amendment and failure to make a decision on a Site Plan application to permit a permanent hot-mix asphalt plant and a future ready-mix concrete plant.

The Tribunal found that the proposed development is consistent with the Provincial Policy Statement and conforms to the County and Town Official Plans.

The Tribunal accepted expert evidence demonstrating that the plant is appropriately separated from sensitive land uses and that potential impacts related to noise, dust, odour, and traffic can be adequately mitigated.

The appeal was allowed, and the Zoning By-law Amendment and Site Plan were approved.

The Tribunal held a second Case Management Conference regarding appeals against the City of Ottawa's adoption of Official Plan Amendment No. 3 (Orleans Corridor Secondary Plan).

The Tribunal deferred consideration of 21 Participant Status Requests to the next CMC because not all requests had been properly served on the parties.

A further CMC was scheduled for February 2024 to update the Tribunal on settlement discussions and consider the participant requests.

The applicant brought a motion to dismiss the appellant's appeal of a zoning by-law amendment without a hearing under subsection 34(25) of the Planning Act.

The amendment permitted the development of a 10-unit transitional housing apartment building and regularized an existing group home.

The Tribunal found that the appellant's concerns regarding public consultation, servicing adequacy, traffic safety, and zoning compliance were unsubstantiated apprehensions and did not constitute genuine land use planning grounds.

The motion was granted and the appeal was dismissed.

The applicant sought costs of $41,799.26 against the appellant following a minor variance appeal regarding a residential redevelopment.

The applicant argued the appellant's conduct was unreasonable and frivolous.

The Tribunal dismissed the motion for costs, finding that the appellant had provided reasons for her appeal, retained an expert arborist, did not cause unnecessary delays, and successfully advocated for additional conditions to protect a tree.

The Tribunal concluded the appellant's conduct was not unreasonable, frivolous, vexatious, or in bad faith.

The applicant appealed the municipality's refusal of a zoning by-law amendment to permit a Cannabis Production Facility and reduce setbacks on a rural commercial property.

At a settlement hearing, the Tribunal accepted uncontested expert planning evidence that the proposal, which reuses an existing building and includes an air treatment system, is consistent with provincial policies and represents good land use planning.

The appeal was allowed in part and the zoning by-laws were amended accordingly.

The appellant challenged the legality of a by-law passed by the City of Kingston imposing impost fees for water and wastewater infrastructure under the Municipal Act, 2001.

The appellant argued that such fees could only be imposed under the Development Charges Act, 1997 (DCA), or alternatively, if under the Municipal Act, 2001, then subject to the procedural protections of the DCA, including a right of appeal to the Ontario Municipal Board (OMB), which the City could not provide.

The appellant also argued the by-law was illegal under s. 394(1)(e) of the Municipal Act, 2001, as water and wastewater are natural resources.

The Court of Appeal dismissed the appeal, affirming that municipalities have dual legislative regimes for imposing development fees, and the Municipal Act, 2001, provides a valid basis for the impost fees.

The court clarified that s. 15(1) of the Municipal Act, 2001, does not require importing DCA procedural protections, as the two statutes confer different powers and have distinct review mechanisms.

Furthermore, the court found that s. 394(1)(e) does not prohibit fees for infrastructure that transports water and wastewater for ratepayers' benefit.

The applicant appealed the Town of Greater Napanee's refusal of an application to amend a zoning by-law to permit a permanent asphalt and ready-mix concrete plant.

At the Case Management Conference, the Tribunal granted party status to a local group, Keep Napanee Great, on consent.

The Tribunal directed the parties to submit a joint draft Procedural Order and Issues List and scheduled a 10-day hearing of the merits.

The Tribunal held a first Case Management Conference regarding appeals by the community association against the municipality's approval of zoning and official plan amendments for a 12-storey mixed-use development.

The parties agreed to a draft Procedural Order and requested a 4-day hearing.

The Tribunal issued the Procedural Order and scheduled the hearing to commence on December 12, 2022.

The appellant appealed the City of Kingston's refusal of a zoning by-law amendment to permit a three-unit dwelling with modified performance standards, including reduced parking requirements.

Prior to the hearing, the parties reached a settlement.

Based on uncontroverted expert land use planning evidence, the Tribunal found the amendment consistent with the Provincial Policy Statement and in conformity with the City's Official Plan, as it promotes residential intensification in an appropriate location.

The appeal was allowed and the zoning by-law was amended.

The appellant appealed a Committee of Adjustment decision that only partially approved minor variances required to add a fifth storey to a previously approved four-storey apartment building.

The requested variances included reductions to parking rates, setbacks, and technical variances related to condominium boundaries.

Relying on uncontroverted expert planning evidence, the Tribunal found that the variances were consistent with the Provincial Policy Statement, conformed to the Growth Plan, and met the four tests under section 45(1) of the Planning Act.

The appeal was allowed in part and the variances were authorized subject to conditions.

The appellant appealed the municipality's passage of Zoning By-law No. 62-21, which restricted the expansion of its existing cannabis production and processing facility.

Prior to the hearing, the parties reached a settlement and jointly requested the Tribunal to approve an amended version of the by-law.

Based on uncontested expert planning evidence, the Tribunal found that the amended by-law, which establishes site-specific setbacks and excludes outdoor growth or storage, is consistent with provincial policies and constitutes good planning.

The appeal was allowed in part to enact the amended by-law.

The City of Ottawa and Shepherds of Good Hope brought motions to dismiss an appeal of a zoning by-law amendment that permitted an eight-storey supportive housing development.

The Tribunal allowed the City's motion, finding the appellant failed to properly serve the notice of appeal as required by s. 34(19) of the Planning Act.

The Tribunal also allowed the applicant's motion to dismiss the appeal without a hearing under s. 34(25), concluding the notice of appeal failed to explain how the by-law was inconsistent with applicable policies and failed to disclose any apparent land use planning grounds.

The applicant appealed the City of Ottawa Committee of Adjustment's refusal of consent and minor variance applications to sever a property into two parcels, each containing one half of a newly rebuilt semi-detached dwelling.

The Tribunal found that the severance met the criteria under section 51(24) of the Planning Act and that the minor variances for reduced lot area met the four-part test under section 45(1).

The Tribunal also granted permissions to expand the legal non-conforming building envelope under section 45(2), finding the changes desirable and without undue adverse impact.

The appeal was allowed in part, granting provisional consent and authorizing the variances subject to conditions.

The applicants appealed the City of Ottawa Committee of Adjustment's refusal of a minor variance to permit a reduced lot area for a proposed triplex.

The subject property, located near transit stations, required a variance for lot area due to its shallow depth, though it met all other zoning performance standards.

Relying on uncontradicted expert planning evidence and a supportive municipal staff report, the Tribunal found the variance met the four tests under the Planning Act and was consistent with provincial policies encouraging residential intensification.

The appeal was allowed and the variance authorized subject to standard municipal conditions.

The appellant appealed two zoning by-law amendments passed by the City of Ottawa to regulate short-term rentals (STRs).

The appellant argued that 'dedicated' STRs (without a principal residence requirement) should be allowed in mixed-use zones that permit both hotels and dwellings.

The Tribunal dismissed the appeal, finding that dedicated STRs are commercial uses that negatively affect housing supply and affordability, and are incompatible with residential functions even in mixed-use buildings.

The Tribunal also found that the by-laws do not unlawfully restrict legal non-conforming rights and declined to recognize specific properties as legal non-conforming due to insufficient evidence.

A request by the City to extend the temporary use period of the by-law was also denied.